NYPD must ditch discriminatory Muslim surveillance for its own good

Twice in the course of the last month, the New York City Police Department has been forced to defend its Muslim surveillance program in court. Police documents show that at least since 2003, the NYPD's Intelligence Division intensively monitored the daily lives of law-abiding American Muslims in the city and surrounding areas. The department's argument that there is no such program — it simply follow leads and goes where they take it — flies in the face of this publicly available evidence. And its refusal to acknowledge that Muslims may have legitimate concerns about surveillance will likely take the NYPD down the same unproductive path it followed with its stop-and-frisk program.

New York's police force has long been criticized for its policy of stopping and searching people based on race rather than on suspicion of criminal activity. But instead of taking these complaints seriously, the police only ramped up the program. From 2002 to 2011, the number of stops by the NYPD increased some 600 percent; nearly nine of 10 people stopped were innocent of any wrongdoing. After a series of lawsuits, in August of this year a federal court found that the stop-and-frisk program amounted to an unconstitutional pattern and practice of racial profiling.

It is now well documented that the NYPD's Demographics Unit secretly mapped Muslim communities. It created lists of bookshops, kebab houses, hookah bars and food stores frequented by Muslims, and it kept notes on the mundane conversations that officers overheard there. The NYPD also sent informants into mosques to eavesdrop on sermons and conversations among worshippers. It apparently wanted to gauge reactions to world and local events, such as the 2006 protests in parts of the Arab world about Danish cartoons depicting the Muslim prophet Muhammad and the small plane that accidentally crashed into a Manhattan building the same year. The result of this snooping: nothing. Yet all the chatter was dutifully logged.

So how does the NYPD defend these actions?

To a degree, the department has relied on the same losing strategy it deployed in the stop-and-frisk litigation. Faced with statistics showing that in the past decade 86 percent of people stopped by police were black or Latino, the NYPD argued that this proportion was only to be expected, because these groups committed the most crimes. But a federal court rejected this argument. "Rather than being a defense against the charge of racial profiling, however, this reasoning is a defense of racial profiling," the judge wrote. In court hearings on the Muslim surveillance program, city lawyers have said that snooping on Muslims is only to be expected, because Muslims staged terrorist attacks in New York.

The NYPD simply refuses to understand that targeting all members of a religious group just because some among them have committed terrible crimes is the essence of unconstitutional profiling. In this, the department has the full backing of Mayor Michael Bloomberg.

When it comes to spying inside mosques, the NYPD says it is following the Handschu Guidelines. These were part of the settlement of a lawsuit over the NYPD’s 1970s-era spying on political groups. After the 9/11 attacks, the rules were loosened to allow the police to attend First Amendment-protected gatherings, such as demonstrations and religious services. But attendance is one thing, using undercover informants masquerading as devout Muslims is another. For that sort of involvement, the NYPD concedes that it needs some indication of criminality.

The police claim to adhere to this requirement. Yet their proof is strained. Their 2006 "Strategic Posture" review shows plans to put informants in 37 mosques. It suggests that the police were simply trying to place people in a number of mosques rather than making a determination that specific leads required them to do so. According to recently released documents, the police designated at least 10 of the mosques as "terrorist enterprises." But they never filed charges against any of them or their leaderships. This is not surprising. An NYPD document makes clear that the infiltrations had little to do with suspected criminal activity. Rather, the police were trying to understand the "leadership" dynamics of particular mosques. Even the FBI, which also gained greater surveillance authority after 9/11, refused to go along with the NYPD's surveillance schemes on such thin legal grounds.

Many Americans do not care that cops are spying on Muslims, because they believe that doing so is necessary to keep the country safe.

But for all the NYPD's strenuous efforts, there is little evidence that watching Muslims has helped fight terrorism. The head of the Demographics Unit conceded that not a single lead was generated on his watch. Sure, the NYPD has made a few arrests stemming from sting operations (which the FBI passed on because of doubts about the reliability of police informants). But it missed the two biggest threats to New York City in recent years: Najibullah Zazi, who was arrested in 2009 for plotting to blow up the subway and whose mosque the NYPD had infiltrated, and Faisal Shahzad, who tried to set off a car bomb in Times Square on May 1, 2010. Moreover, as a group of Muslim leaders told Bloomberg, these police tactics "deepen mistrust between our communities and law enforcement." By alienating Muslims who are often the best sources of information for fighting terrorism, the NYPD may well be making us all less safe.

For the last decade, the NYPD refused to acknowledge any flaws in its stop-and-frisk program. In the process, it angered blacks and Latinos across the city. Its intransigence is part of the reason the City Council recently passed two laws to rein in the police and a federal court found that the practice of racial profiling required independent monitoring of police conduct. Unless the NYPD reverses course on its Muslim surveillance program — or is forced to by Bloomberg's successor (leading candidate Bill de Blasio has promised to stop wholesale surveillance) — it will repeat the same mistakes at great cost, both to the public's trust and to its own reputation.

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